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What just happened?

Earlier today the U.S. Supreme Court split 4-4 on a legal challenge to a California law that forces non-union workers to pay fees to public-employee unions.

What was the case about?

California law requires every teacher working in most of its public schools to financially contribute to the local teachers’ union and that union’s state and national affiliates in order to subsidize expenses the union claims are related to collective bargaining. California law also requires public school teachers to subsidize expenditures unrelated to collective bargaining unless a teacher affirmatively objects and then renews his or her opposition in writing every year.

In the case of Friedrichs v. California Teachers Association, several plaintiffs, including Rebecca Friedrichs and the Christian Educators Association International, challenged the law claiming that this agency shop provision is a form of state-compelled speech. The Supreme Court was asked to decide:

1. Whether Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977), should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment.

2. Whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.

What is a “public-sector” union?

A public-sector union is a trade or labor union that represents the interests of employees within public sector or governmental organizations, such as teachers, firefighters, federal government employees, etc.

What is an “agency shop”?

Many states in the U.S. allow for a union security agreement, a contractual agreement between an employer and a union that compels employees to either join the union and/or pay fees to the union. (States that have statutes that prohibit union security agreements are known as “right-to-work” states.)

An agency shop provision is a form of union security agreement where the employer may hire non-union workers, but such workers must pay a fee to cover the collective bargaining costs of the union. The fee paid by non-union members under the agency shop is known as the “agency fee.”

What was the Abood v. Detroit Bd. of Ed case about?

The Abood case resulted in a 1977 Supreme Court decision ruled that a public workspace (such as a public school) could be an agency shop. The Court determined that non-members of the union may be assessed dues for “collective bargaining, contract administration, and grievance adjustment purposes” while insisting that objectors to union membership or policy may not have their dues used for other ideological or political purposes.” The decision also noted:

Although public employee unions’ activities are political to the extent they attempt to influence governmental policymaking, the differences in the nature of collective bargaining between the public and private sectors do not mean that a public employee has a weightier First Amendment interest than a private employee in not being compelled to contribute to the costs of exclusive union representation. A public employee who believes that a union representing him is urging a course that is unwise as a matter of public policy is not barred from expressing his viewpoint, but, besides voting in accordance with his convictions, every public employee is largely free to express his views, in public or private, orally or in writing, and, with some exceptions not pertinent here, is free to participate in the full range of political and ideological activities open to other citizens.

The problem is that everything that is collectively bargained [by a public-sector union] with the government is within the political sphere, almost by definition. Should the government pay higher wages or lesser wages? Should it promote teachers on the basis of seniority or on the basis of ­­ all of those questions are necessarily political questions.

On the second question, Amy Howe explains, “the challengers in this case argue that the system has it backwards: instead of charging everyone for those expenses and requiring non-members to opt out, the union should only charge the people who affirmatively opt in by agreeing to pay them.”

What is the primary argument that Abood should be upheld?

During the oral arguments, notes Amy Howe, the Court’s four liberal Justices spent relatively little time on the main legal issue of whether requiring non-members to pay the fee violates the First Amendment:

Instead, many of their questions centered on whether, even if [plantiff] Friedrichs has a stronger legal argument, the Court should still rule against her based on a legal doctrine known as “stare decisis” – which counsels that the Court should not overturn its prior rulings unless there is a particularly compelling reason to do so. This suggests that the more liberal Justices realized that the battle on the merits of the case was not one that they could win. And so they shifted gears, trying to salvage a victory by convincing at least one of their colleagues that it would, as a matter of principle, be a bad idea to overrule the decision in Abood.

What’s wrong with being forced to pay for union representation?

In many countries that have a state religion citizens are forced to pay a portion of their income to support the activities of the state-approved church. Most Americans recognize that being required to directly finance the sectarian and dogmatic activities of a religious organization they may not wish to be associated with is a violation of their freedom of association.

Similarly, Americans should not be forced to financially support unions that claim to their economic interest if they believe such organizations are engaging in activities (such as political campaigning) they disapprove of.

In the context of unions, a free rider is an employee who pays no union dues or agency shop fees, but nonetheless receives the same benefits of union representation as dues-payers. But there is no free rider problem unless a union explicitly chooses to create free riders. As James Sherk explains:

Unions and their supporters argue that this unfairly forces them to represent workers who do not pay their share of collective-bargaining costs. They argue that right to work allows workers to enjoy the benefits of a union contract without paying for it. As Michigan state representative Tim Greimel told the Detroit News, “This really is not about so-called right to work or so-called freedom to work, it’s about freedom to freeload.”

That would be a fair point, if it were true. But it is not. The NLRA does not require unions to bargain as exclusive representatives. It enables them to do so — an important difference. Unions may bargain on behalf of every worker in the company. But the Supreme Court has ruled that the NLRA’s protections are “not limited to labor organizations which are entitled to recognition as exclusive bargaining agents of employees . . . ‘Members only’ contracts have long been recognized” (Retail Clerks v. Lion Dry Goods, 1962). Unions can negotiate contracts that apply only to dues-paying members and exclude non-dues-paying members. Their argument against right to work is untrue.

What is the effect of the 4-4 decision?

The 4-4 decision sets no new precedent but merely leaves in place an appeals court ruling in favor of the unions.

As Reuters notes, the outcome emphasized the impact of Scalia’s death, as he likely would have been a decisive vote against the unions. The issue is likely to come before the Supreme Court again in the future after a ninth justice has been appointed to fill the vacancy caused by Justice Scalia’s death.

Joe Carter is a Senior Editor at the Acton Institute. Joe also serves as an editor at the The Gospel Coalition, a communications specialist for the Ethics and Religious Liberty Commission of the Southern Baptist Convention, and as an adjunct professor of journalism at Patrick Henry College. He is the editor of the NIV Lifehacks Bible and co-author of How to Argue like Jesus: Learning Persuasion from History's Greatest Communicator (Crossway).